Should I paint a copyrighted image?

I see artists posting images of paintings they have created of famous people, all the time on social media and often wonder if they are at all concerned about the potential repercussions of copyright law, personality/celebrity rights (in the United States), 'passing off' or defamation.

Before I get into this discussion, please note I am NOT a lawyer so if you have any doubts or queries, I strongly suggest consulting a professional.

I've often thought of painting some living, famous celebrity - say Clint Eastwood, for example, in his role as 'The man with no name'. But its not like doing a master study which is a recognised and legitimate art exercise, where one copies one of the old master paintings in an attempt to explore specific techniques or processes or just to try and figure out how they did it - provided, of course, you don't try to pass it off as an original. With a master copy, you can share images of your attempt, discuss your process and even sell the piece provided the buyer has full disclosure and appropriate attribution has been given to the original (and long since passed) artist. In this situation, I couldn't share any images of my work on this fictitious piece, have it in my portfolio, show it anywhere or sell it. Which is fair enough - I wouldn't want anyone ripping off any original pieces I intended producing; the copyright law and all the other laws are there to protect all of us.

Famous people - alive or dead.

So what about the paintings of famous people I see, all the time, popping up on social media? These are typically of living celebrities like Morgan Freeman, many of the Game of Thrones stars or those who may have passed away such as Marilyn Monroe, Nelson Mandella or Bob Marley. I've seen paintings of The Beatles, The Rock, Madonna, Michael Jackson - the list is endless.

And there are fairly well-known artists with You-Tube channels who paint celebrities in their videos. While they may not sell the painting they produced, they are benefitting financially, albeit indirectly, from the celebrity.

There is an exception under the personality/celebrity rights apparently, which allows the likeness to be used in unique (but not multiple) works of art.

Even if the celebrity has passed away, their image is often protected, as part of their estate and copyright law typically lasts for 70 years after the death of the celebrity, author or artist.

I've created my own list of celebrities who I think would make good subjects to paint, but I probably won't - I value my sleep too much.

I reckon with celebrities, they're more than happy to see the odd painting here and there of their visage, after all it keeps them in the public eye, and they're probably not put out about it. However, if a painting of them sold for millions or if some corporation started selling millions of t-shirts with their image on it - that would be different. Why? Because the money involved makes it worth getting the legal team in action.

Artistic Freedom.

And if you've used a photograph of a celebrity as a reference, then you could still be in trouble - the copyright of the photograph is often owned by the photographer, or more likely, the media outlet for which they work.

There's supposed to be something called 'artistic freedom' where if you change something enough in your painting, then its considered 'derivative' work and is outside the copyright legislation - but what is 'enough' and who decides if it is or isn't - if it gets to that stage, its the courts who decide, and your already in trouble and probably in debt.

So you can have all the artistic freedom in the world but if you're making lots of moolah with it, you'd better have taken all the reference photos yourself and ensured it is a truly original piece (or get whatever permissions you need in writing).

And artistic freedom should not be considered as your 'get-out-of-jail' card. I'm sure there's some law that says if you publicise an image or work-of-art of some famous person that could be considered to be damaging to their persona, then you'll still fall foul of the law. And the law obviously varies from country to country and even state to state, making the whole thing a bit of a nightmare.

There have been a number of high profile copyright infringement cases, among them:

• The Associated Press vs. Fairey - street artist Shephard Fairey created the Hope poster for the Obama presidential campaign but had used a photograph taken by Mannie Garcia, without permission or attribution. The 2009 case was eventually settled in 2011, privately, which included a split in the profits for the work.

My next art piece?

To avoid any pitfalls and sleep soundly at night, I'm going to take my own reference photographs, if any, come up with original ideas and compositions and hopefully not offend anyone with the outcome.

So I reckon my next piece is not going to be of a celebrity (unless I get a phone call from Clint!).

Further reading.

Here's some links to articles on this subject which I've found interesting, useful or both:

https://artistryfound.com/can-you-sell-a-painting-of-a-celebrity/

https://artquest.org.uk/artlaw-article/what-if-i-want-to-use-an-image-of-a-celebrity-in-my-work-2/